Privacy International files legal challenge against UK government over mass surveillance programmes

In the wake of revelations that the UK Government is accessing wide-ranging intelligence information from the US and is conducting mass surveillance on citizens across the UK, Privacy International today commenced legal action against the Government, charging that the expansive spying regime is seemingly operated outside of the rule of law, lacks any accountability, and is neither necessary nor proportionate.

The claim, filed in the Investigatory Powers Tribunal (IPT), challenges the UK Government on two fronts[2]. Firstly, for the failure to have a publicly accessible legal framework in which communications data of those located in the UK is accessed after obtained and passed on by the US National Security Agency through the Prism programme. Secondly, for the indiscriminate interception and storing of huge amounts of data via tapping undersea fibre optic cables through the Tempora programme[3].

Dinah Rose QC and Ben Jaffey from Blackstone Chambers and Dan Squires from Matrix Chambers were instructed by Bhatt Murphy Solicitors[4] who are acting for Privacy International.

Reports state that the UK had access to the Prism programme since at least June 2010, and has generated 197 intelligence reports[5] from the system in 2012. Without a legal framework, which would allow citizens to know the circumstances in which such spying would take place, the Government effectively runs a secret surveillance regime, making it nearly impossible to hold them accountable for any potential abuses. The absence of this legal framework appears to be in breach of the European Convention of Human Rights, Article 8, which provides the right to privacy and personal communications, and Article 10, which provides the right to freedom of expression.

Eric King, Head of Research at Privacy International said:

One of the underlying tenets of law in a democratic society is the accessibility and foreseeability of a law. If there is no way for citizens to know of the existence, interpretation, or execution of a law, then the law is effectively secret. And secret law is not law. It is a fundamental breach of the social contract if the Government can operate with unrestrained power in such an arbitrary fashion.

Mass, indiscriminate surveillance of this kind goes against the most basic fundamental human rights to privacy. The scope and scale of this program, which monitors the entire British public and much of the world, cannot be justified as necessary and proportionate.”

Bhatt Murphy Solicitors said:

The UK authorities have been engaged in a regime of surveillance which amounts to a serious and unjustifiable violation of the rule of law: it breaches EU law, and it breaches the rights of the citizen to freedom of expression and privacy as protected by the Human Rights Act.”

Additionally, Privacy International is challenging the Government’s Tempora operation, a programme that reportedly secretly conducts mass surveillance by tapping fibre optic cables, giving the Government access to huge amounts of data on both innocent citizens and targeted suspects. Tempora is the name of a core programme within Mastering the Internet, designed to intercept internet traffic that flows through the undersea fibre-optic cables that land in the UK. It is reported that the GCHQ project has, since 2008, steadily been building capability and now claims to provide the “biggest internet access” of any intelligence agency in the Five Eyes alliance of eavesdropping agencies in the United Kingdom, the United States, Canada, Australia, and New Zealand. According to the Guardian, in 2011 “more than 39bn events in a 24-hour period” were recorded producing “larger amounts of metadata collection than the NSA”.

The Tempora programme by its very nature appears to violate the underlying requirement for interception, which requires that surveillance is both necessary and proportionate under the Regulation of Investigatory Powers Act 2000 (RIPA).

While Privacy International intended to file the Prism claim in the Administrative Court, which would have made the proceedings public, Government lawyers, upon receiving notice of our intention, vociferously notified us that we could not bring such a claim in the Administrative Court. Rather, the claim has been forced to be filed with the IPT, a secret tribunal that does not make its proceeding public or have to justify reasons for its decisions.